Of what use is an award that cannot be enforced?
…Legal Luminaries discuss Nigeria as an enforcing state for Foreign International Commercial Arbitration
On 8thoctober 2020, during the virtual book launch of “Foreign International Commercial Arbitration Awards (FICAA): Recognition and enforcement, the Nigerian situation, challenges and proposed solutions” by Chinwe Odigboegwu, FCIARB, a group of distinguished panellists explored the success of enforcing FICAA in Nigeria.
In his keynote address, Seni Adio, SAN, partner, Copley Partners, and immediate past president, Nigerian Bar Association, said the book was both topical and practical; the former because Nigeria has become a poster sovereign in a recent number of international arbitral procedures, the latter because it identifies problems concerning enforcement of awards, offers solutions to them and presents an opportunity to discuss “a burning issue which has divided arbitration practitioners”.
Tunde Busari, SAN, partner, Akinwunmi & Busari commending the author on behalf of the Chartered Institute of Arbitrators, Nigeria said.
“Challenges facing the recognition and enforcement of awards in Nigeria includes the delay in courts, the willingness of Nigerian courts to enforce foreign arbitration awards, the ease or difficulty of doing so and the likely timescale of the process of enforcement, all great concerns to any foreign investors intending to enforce arbitral awards in Nigeria.”
Abimbola Akeredolu, SAN, partner, Banwo & Ighodalo in her review, said of the book,
“It looked at the different factors that could influence the recognition and enforcement of FICAA and the attitudes and reaction of the Nigerian courts to examine whether they actually understand the objective of arbitration and roles in ensuring that the objectives of arbitration is achieved. The author also delved into the question of whether the applicable legal instruments and procedures provide an effective framework for enforcement. Finally, the author proposed solutions to the challenges being experienced in the area of recognition and enforcement of FICAA. She examined what obtains in the UK as a model, the competent courts for enforcement, grounds for refusal, the thought that perhaps the right of appeal should be restricted, the proposal whether the establishment of specialized or commercial courts would assist in resolving the problems. In recommending it, she said, “I identified that in a certain area, the author went into a very interesting topic, itemized a number of things but discussed only a few of them and left the audience high and dry. She should consider writing a second edition and do justice to the itemized areas.”
The panel themed, “International Arbitration: Nigeria as an Enforcing State” comprised of Funke Adekoya, SAN, partner, AELEX; Uche Uwechia, Company Secretary & Director of Legal, GlaxosmithKline, Nigeria; Dr. Khrushchev Ekwueme, partner, Olaniwun Ajayi and Deborah Chukwuedo, partner, Accendolaw.
Deborah Chukwuedo introducing the panel said,
“One of the advantages of arbitration as dispute resolution mechanism especially in Nigeria where the dockets are overflowing with cases is that the parties get to choose the arbiter of their dispute from outside the court system. However, armed with an award, a successful party must resort to the court for enforcement of the awards” which in itself is likely to negate the benefits obtained from arbitration.
Funke Adekoya, SAN, speaking on whether Nigeria is a safe seat for arbitration said,
“The idea of the centenary principles of the Chartered Institutes is that any nation that fulfils those 10 principles will be considered as a safe seat for international arbitration. For us, our judiciary still needs more training, more exposure and a greater understanding of the relationship between the arbitration process and the judicial system. They are to enforce or to set aside an award based on the limited scope provided in the arbitration Acts or in the relevant legislature. They aren’t to open up the award, to review or second guess the decision of the arbitrators.”
Dr. Khrushchev Ekwueme agreed that Nigeria is not yet there in relation to being a safe place for arbitration but as a destination for arbitration. He believes that the Nigerian courts have moved from ‘judicial hostility’ to ‘judicial hospitality’. He mentioned that Nigeria is well equipped to handle arbitration with its world class arbitrators for commercial disputes and good arbitration institutions. He also mentioned that in determining which of the courts have the jurisdiction to entertain an arbitration relating to the enforcement of setting aside an award that reference has to be made to the constitution regarding the court with the regional jurisdiction to determine the matter that gave rise to the award.
In view of the difficulties experienced at the court, during the enforcement stage, Uche Uwechia, noted that, “arbitration in summary offers a very good opportunity for businesses to control dispute resolution risks, however, I encourage businesses to anticipate disputes when engaging with third parties from outside the country and to consider how they will be resolved.”
The author, Chinwe Odigboegwu pinned her inspiration for the book to her past experience in enforcement of arbitration, dispute resolution and her passion for changes. Quoting from the book she said.
“Nigeria may not be ranked as a top arbitration friendly country at this time due to the current position of enforcement of foreign awards but certainly cannot be described as one that is anti-arbitration. The challenges though fundamental are not unsurmountable. What is required by the government and other stakeholders identified and is already in view is a radical change in attitude, followed by bold and proactive demonstration of the willpower to do what is required to change Nigeria’s reputation internationally in this regard.”
The event, which was compered by Wale Oshunde, Senior Manager, Legal & PAC-CHI Limited concluded with a goodwill message from Rotimi Odusola, Legal Director/ Company Secretary, Guinness Nigeria Plc.